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<xTITLE>A Case Study of Murphy’s Law in Missouri</xTITLE>

A Case Study of Murphy’s Law in Missouri

by John Lande
August 2018

Indisputably

John Lande

Ben Trachtenberg, one of the sharpest faculty at my school, wrote this outstanding article analyzing what went wrong during the highly-publicized controversies at the University of Missouri in 2015.  Having lived through this painful conflict, Ben’s account seems extremely accurate – and brings up a lot of sad memories for me, reminding me of things I wrote at the time.

As you may or may not recall, African American students protested racism at the University, our football team threatened to boycott a game, a communications professor was videotaped asking for some “muscle” to evict a journalist from a public space, and University President Timothy Wolfe and Columbia Campus Chancellor R. Bowen Loftin were forced to resign.  The state government cut financial support and intruded in university administration.  The good news, as Ben points out, is that things have improved since then, though we are still suffering from some lingering effects of these events.

A Very Bad Negotiation

At our Tower of Babel symposium, David Matz and Adrian Borbély argued that to correct and improve negotiation theory, we need full-length descriptions of actual – not just hypothetical – events to learn how negotiation works in the real world.  Although David and Adrian advocated specifically for book-length accounts, Ben’s article certainly provides valuable in-depth analysis.  As chair of the Faculty Council during these events, he had an inside view of what was going on.  He also thoroughly documents the account, which current University officials say is a fair and accurate analysis.

We can learn a lot from negotiations that went well and those that didn’t.  This one certainly didn’t.  In this complex multi-party situation that continued for an extended period of time, there were lots of negotiations.  Ben’s article focuses particularly on what went wrong in the negotiation between University administrators and the protesters.

What went wrong?  This was a case of Murphy’s Law:  just about everything that could go wrong did go wrong.

Ben identified four major problems:  Mssrs. Wolfe and Loftin detested each other and there was an insurrection of deans against Loftin, so it was hard for them to cooperate in dealing with the crisis.  The University moved too slowly in responding to developments.  Top university officials confused things by taking conflicting positions.  The university’s governing board and president’s office did not take advantage of potential sources of information.

Part of the problem was the difficulty in negotiating with student protesters in this situation.  In Part II of the article, focusing specifically on negotiation issues, Ben points out that the protesters didn’t have an established decision-making structure or process, unlike an organization with a defined chain of command.  Indeed, there was no formal membership in the protest population, so protest leaders couldn’t truly represent them and any agreements by the protest leaders would not necessarily bind the protesters.  In addition, for some of the demands, the university did not have the power to satisfy them at all or any time soon.

Although Ben’s main focus is on the errors by the university leadership, he ends with some advice for student protesters.  He recommends using dialogue as much as possible and using confrontation only as a last resort.  He highlights the importance of taking great care in crafting demands and public statements, which are subjected to extreme scrutiny.  He also advocates non-violence.

In making these suggestions, Ben is careful not to blame the protesters in this situation.  He notes that protesters did seek dialogue but the university did not respond well, if at all.  Given the dysfunction in the university and state political environment, even if the protesters perfectly followed his advice, it probably would not have made a difference.

At the time, I wrote a post in response to queries I received about whether our DR center might help to resolve the conflict.  I noted that many of us in academia do not have the skills, experience, or time to intervene directly.  Moreover, we often assume that we should take the role of a neutral mediator trying to resolve conflict.  As I wrote in a recent post about dealing with major conflicts these days, there are many other roles that people in our field can and should take at times.

In situations like the one we faced in 2015, people in our field might be particularly helpful as negotiation coaches.  Protesters could benefit from advice to address the organizational and strategic issues that Ben identified.  In particular, coaches might help protesters develop a decision-making process recognized as legitimate by the protesters and the officials they seek to negotiate with.  Coaches can help figure out how to initiate and maintain constructive dialogue – while being prepared to take confrontational actions if the protesters choose.  Coaches also can help protesters to develop demands, communication strategies, and negotiation strategies to get the best possible results.  In the midst of an intense, unfolding conflict, none of these tasks are easy.  However, good coaching could help reduce some of the problems.

It seems unlikely that this would have helped in our situation given all the other problems that Ben describes.  Moreover, even expert academics may not be in position to act as negotiation coaches any more than they can serve as mediators of conflicts on their campuses.

This is another area where there is a body of knowledge and experience that I haven’t studied.  There are a number of resources in our field including (but probably not limited to) Ohio State’s Divided Community Project, the Essential Partners Project (formerly Public Conversations), the National Coalition for Dialogue & Deliberation, the Pluralism, Dialogue, and Community Transformation Initiative, and Living Room Conversations.  I’m sure there’s also valuable theoretical and practical literature for dealing with these issues.  Feel free to post a comment adding anything else you would suggest.

Conclusion

I heartily recommend Ben’s article.  It’s like a gripping fact-based movie where you know how it is going to end but you can’t wait to see how things unfold.  This is true both for people who intimately lived through the events and those who didn’t.

The article also can contribute to our knowledge about dispute resolution in the way that David Matz and Adrian Borbély suggested.  Ben identified some insights and I’m sure that others can mine his account to develop more.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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